“29. However, even in a case of rape, the onus is
always on the prosecution to prove, affirmatively
each ingredient of the offence it seeks to establish
and such onus never shifts. It is no part of the
duty of the defence to explain as to how and why
in a rape case the victim and other witnesses have
falsely implicated the accused. The prosecution
case has to stand on its own legs and cannot take
support from the weakness of the case of defence.
However great the suspicion against the accused
and however strong the moral belief and
conviction of the court, unless the offence of the
accused is established beyond reasonable doubt
on the basis of legal evidence and material on the
record, he cannot be convicted for an offence.
There is an initial presumption of innocence of
the accused and the prosecution has to bring
home the offence against the accused by reliable
evidence. The accused is entitled to the benefit of
every reasonable doubt.

30. The prosecution has to prove its case beyond
reasonable doubt and cannot take support from
the weakness of the case of defence. There must
be proper legal evidence and material on record
to record the conviction of the accused. The
conviction can be based on sole testimony of the
prosecutrix provided it lends assurance of her
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testimony. However, in case the court has reason
not to accept the version of the prosecutrix on its
face value, it may look for corroboration. In case
the evidence is read in its totality and the story
projected by the prosecutrix is found to be
improbable, the prosecutrix’s case becomes liable
to be rejected.”

In another decision in the case of Mohd. Ali alias Guddu

vs. State of Uttar Pradesh : (2015) 7 SCC 272 the Hon’ble Supreme

Court after considering the delay in lodging FIR has held in

paragraphs 21, 27 and 29 of the judgment which reads as follows :

“21. It is apt to mention here that in rape cases
the delay in filing the FIR by the prosecutrix or
by the parents in all circumstance is not of
significance. The authorities of this Court have
granted adequate protection/allowance in that
aspect regard being had to the trauma suffered,
the agony and anguish that creates the
turbulence in the mind of the victim, to muster
the courage to expose oneself in a conservative
social milieu. Sometimes the fear of social stigma
and on occasions the availability of medical
treatment to gain normalcy and above all the
psychological inner strength to undertake such a
legal battle. But, a pregnant one, applying all
these allowances, in this context, it is apt to refer
to the pronouncement in Rajesh Patel vs. State of
Jharkhand wherein in the facts and
circumstances of the said case, delay of 11 days
in lodging the FIR with the jurisdictional police
was treated as fatal as the explanation offered
was regarded as totally untenable. This Court
did not accept the reasoning ascribed by the
High Court in accepting the explanation as the
same was fundamentally erroneous.

27. Be it clearly stated here that delay in
lodging FIR in cases under Section 376 IPC
would depend upon facts of each case and this
Court has given immense allowance to such
delay, regard being had to the trauma suffered
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by the prosecutrix and various other factors, but
a significant one, in the present case, it has to be
appreciated from a different perspective. The
prosecutrix was missing from home. In such a
situation, it was a normal expectation that either
the mother or the brother would have lodged a
missing report at the police station. The same
was not done. This action of PW 2 really throws
a great challenge to common sense. No
explanation has been offered for such delay. The
learned trial Judge has adverted to this facet on
an unacceptable backdrop by referring to the
principle that prosecutrix suffered from trauma
and the constraint of the social stigma. The
prosecutrix at that time was nowhere on the
scene. It is the mother who was required to
inform the police about missing of her grown-up
daughter. In the absence of any explanation, it
gives rise to a sense of doubt.

29. Be it noted, there can be no iota of doubt that
on the basis of the sole testimony of the
prosecutrix, if it is unimpeachable and beyond
reproach, a conviction can be based. In the case
at hand, the learned trial Judge as well as the
High Court have persuaded themselves away
with this principle without appreciating the
acceptability and reliability of the testimony of
the witness. In fact, it would not be
inappropriate to say that whatever the analysis
in the impugned judgment, it would only
indicate an impropriety of approach. The
prosecutrix has deposed that she was taken from
one place to the other and remained at various
houses for almost two months. The only
explanation given by her is that she was
threatened by the accused persons. It is not in
her testimony that she was confined to one place.
In fact, it has been borne out from the material
on record that she had traveled from place to
place and she was ravished a number of times.

Under these circumstances, the medical evidence
gains significance, for the examining doctor has
categorically deposed that there are no injuries
on the private parts. The delay in FIR, the non-
examination of the witnesses, the testimony of
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the prosecutrix, the associated circumstances
and the medical evidence, leave a mark of doubt
to treat the testimony of the prosecutrix as so
natural and truthful to inspire confidence. It can
be stated with certitude that the evidence of the
prosecutrix is not of such quality which can be
placed reliance upon.”

22. Considering the settled principle of law laid down by

the Hon’ble Supreme Court in the above judgments and catena of

decisions it appears that no doubt it is true that infirmities in the

investigation will not make prosecution case unbelievable as

investigation is not under the control of the prosecutrix or her family

members. It further appears that for conviction under Section 376

IPC, no corroboration as a rule is required of the evidence of

prosecutrix as prosecutrix shall not be compared to a accomplice

rather her evidence is on higher degree than the injured witnesses and

general reliance shall be placed on the evidence of prosecutrix unless

there are not free from embellishment or in totality of the prosecution

case, her evidence does not inspire confidence and does not appear to

be believable.

23. As discussed above, in this case there is delay in

lodging FIR of almost 53 days and the delay has not been properly

explained rather cause of delay was as she was under domestic

treatment is contrary to complaint petition when she has stated that

she was under treatment of a private doctor and the name of the doctor

has not ever been disclosed. According to prosecution case the
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occurrence took place at 5 P.M. in the evening and they have

disclosed that other persons were also present there and P.Ws 1 to 4

and 5 6 shown as eye-witnesses have been examined but P.W.6 has

been declared hostile stating that he has not seen the occurrence and

P.W.2 though claims himself as an eye-witness but has stated that his

statement was recorded after one year 8 months of the occurrence by

police. That creates a serious doubt about his credibility. P.W.5 is

only hearsay witness. So far P.Ws. 1 and 3 are concerned, they are

father and mother of the prosecutrix and they were aware about

kidnapping rather claim to be eye-witnesses but in spite of that they

have not raised alarm nor they have filed complaint to the court or

have gone to the police. There is also nothing to show that they

approached the Panchayat or any Panchayati was held and kept

waiting for prosecutrix and even when she returned the case was

lodged after 53 days of her return. Above facts coupled with the fact

that the prosecutrix has stated in her cross examination that three

persons came on motorcycle, which is contrary to her evidence in

chief and P.W.1 though claims to be eye-witness, could not disclose

the number of motorcycle and P.W.3, mother of victim,and even

could not state about colour of motorcycle. Further evidence of P.Ws.

1 and 3 disclosed that she was raising alarm, whereas the evidence of

P.W.4 does not show that. The above contradiction, which are minor

and in normal circumstances, can not be of much importance. But
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where all the circumstances, i.e., there is inordinate delay of 53 days,

not being properly explained, coupled with the conduct of P.W.3 for

not approaching police or any other authority or Panchayat are

considered together, they certainly create a serious doubt about the

prosecution case.

24. On the other hand, suggestion has been given to

P.W.4 that there was love affairs between appellant Mulin Das and the

victim and as he has not married her, as such the false case has been

filed implicating the appellants in this case. Further evidence of P.W.3

shows that there was enmity between the appellants and family

members of the informant from before.

25. Hon’ble Supreme Court in the case of Raju and

others vs. State of Madhya Pradesh : (2008) 15 SCC 133 it has

been held in paragraph-11 of the judgment as follows :

“11.It cannot be lost sight of that rape causes the
greatest distress and humiliation to the victim
but at the same time a false allegation of rape can
cause equal distress, humiliation and damage to
the accused as well. The accused must also be
protected against the possibility of false
implication, particularly where a large number
of accused are involved. It must, further, be
borne in mind that the broad principle is that an
injured witness was present at the time when the
incident happened and that ordinarily such a
witness would not tell a lie as to the actual
assailants, but there is no presumption or any
basis for assuming that the statement of such a
witness is always correct or without any
embellishment or exaggeration.”

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All the above circumstances, as stated above, create

reasonable shadow of doubt about the prosecution case and thus

appellants are entitled for benefit of doubt.

26. Considering the entire discussions made above, this

appeal is allowed. Impugned judgment and order are set aside. As the

appellants are in custody, they are directed to be released forthwith, if